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Virginia Says Jill Stein Petition Has Enough Valid Signatures (August 28, 2016, 01:26 AM)
On Saturday, August 27, the Virginia State Board of Elections checked Jill Stein’s presidential petition, and determined that it has enough valid signatures. Thanks to Rick Lass for this news.
August 2016 Ballot Access News Print Edition (August 27, 2016, 09:47 PM)
Ballot Access News
Table of Contents
FOUR BALLOT ACCESS WINS IN LAST 30 DAYS
Arizona: on July 19, U.S. District Court Magistrate Judge Eileen Willett ordered the Secretary of State to put the Green Party presidential nominee on the November ballot. Arizona Green Party v Reagan, cv-16-2027. This was the third time the Arizona Green Party had won a ballot access lawsuit. The first was in 1999, when the party won a case against a law that said only independent voters could sign for an independent candidate (Campbell v Hull). The second was a 2010 case against the ban on out-of-state circulators (Arizona Green Party v Bennett).
The 2016 case was filed after the Green Party missed the June 1 deadline for certifying the names of its presidential elector candidates. The Secretary of State said that, because the filing was late, she would not put the Green ticket on the November ballot. The party then sued and argued that the June 1 deadline is unconstitutional. In response, the Secretary decided not to try to defend the deadline. Because the state conceded, the case was settled quickly. The only other state with an early deadline for submission of the names of presidential elector candidates is Georgia, which has a July 1 deadline for independent candidates.
The reason the Arizona deadline is so early is that before 1988, presidential elector candidates were chosen in the primary. Nowadays they are chosen in party meetings, which can be much later in the year. The Libertarian Party had missed the Arizona deadline in 1996, and had filed a state court lawsuit to overcome the problem. That case won, but did not cause the legislature to improve the deadline. But now, the Secretary of State says she will ask the 2017 session of the legislature for a later deadline.
Arkansas: on July 15, U.S. District Court Judge James M. Moody, Jr., struck down a law that new parties (which nominate by convention) must choose all their non-presidential nominees at least a year before the election. Libertarian Party of Arkansas v Martin, e.d., 4:15cv-635. That law had been passed in 2015. The decision says that states cannot require convention parties to hold their meetings earlier than the date of the primaries for the old parties. In 2016 the Democratic and Republican Parties held their primaries in March, and in 2018 the primaries are in May.
The decision says the burden on the Libertarian Party is "slight" but that there is no state interest in requiring the party?s convention to be so early.
The party had held a convention in October 2015 and had nominated 17 candidates, who were on the November 2016 ballot no matter what the lawsuit decided. But then it had held a second convention in February 2016, and nominated four more candidates for the legislature, and four more for county office. The judge refused to put these last eight candidates on the ballot. The county candidates could not be o because the party hadn?t sued the county elections officials. The four legislative candidates can?t be on because the judge felt there was no reason why they couldn?t have been nominated in the party?s first convention.
This is only the fourth time any court has held that states can?t require convention parties to choose their nominees before the primary parties choose theirs. The other cases had been in South Carolina in 1970 and 1972, and Alabama in 1980. Such cases are rare because virtually no state ever even requires convention parties to hold their conventions earlier than primary parties.
Maryland: on July 26, the State Board of Elections agreed to settle Dorsey v Lamone, the case filed last year against the number of signatures for a statewide independent candidate. The Board signed a Settlement Agreement, which says, "Whereas, the Parties agree that a court would likely find that unaffiliated candidates for statewide office in Maryland now face a disproportionate burden on their ability to gain ballot access as compared to new party candidates, in violation of the First and Fourteenth Amendments. Plaintiffs and Defendants agree that for the 2016 general election and for any special general election in 2017, the Board will accept 10,000 signatures."
The lawsuit had been filed by Greg Dorsey, an independent candidate for U.S. Senate. His lawsuit argued the state had no need to require him to collect 40,603 signatures when new parties only need 10,000. On June 10, Judge George Russell had issued a ruling, denying the state?s attempt to dismiss the case and implying that the law was shaky.
The settlement also says that the Attorney General and the Board of Elections will ask the legislature to pass a bill in 2017 lowering the statewide petition to 10,000.
Pennsylvania: on June 30, U.S. District Court Judge Lawrence Stengel issued an order in Constitution Party of Pennsylvania v Cortes, e.d., 5:12cv-2726. The order says that the number of signatures for statewide minor party and independent candidates this year will be 5,000. Existing law requires 21,775. The state had been telling the judge that the legislature was going to pass a similar bill, HB 342, which had passed the Senate on June 23. But after a week of inaction in the house, the judge wrote his own temporary law.
U.S. DISTRICT COURT ORDERS MICHIGAN TO USE STRAIGHT-TICKET
On July 21, U.S. District Court Judge Gershwin A. Drain, an Obama appointee, ordered Michigan to put a straight-ticket device on the November ballot. Michigan State A. Philip Randolph Institute v Johnson, e.d., 16-cv-11844. The order says that African American voters have used the device more than other voters, and therefore the legislature?s action early this year, removing the device, injures African Americans.
The order also says that because Michigan ballots still have party logos (tiny cartoon-like symbols for each party), there is a danger that voters who are accustomed to using the straight-ticket device will think that if they draw a circle around the party logo, that has the effect of casting a vote for all of the party?s nominees. The ruling also mentioned that Michigan law only gives voters two minutes to vote.
The order says restoring the straight-ticket device will not harm any voter or candidate. The judge seemed not to be aware that straight-ticket devices are harmful to minor party and independent candidates. On July 25, the state filed a notice of appeal to the Sixth Circuit.
DE LA FUENTE WINS CONNECTICUT DISPUTE
On July 19, the Connecticut Secretary of State rejected Rocky De La Fuente?s petition to be an independent candidate, because it listed someone for President and someone for Vice-President who both live in Florida. The vice-presidential nominee is Michael Steinberg, of Tampa.
Connecticut erroneously believed that the Twelfth Amendment bars a presidential elector from voting for two persons who live in the same state. But De La Fuente pointed out that the Constitution only bars an elector from voting for two people from that elector?s own state, so then the state accepted the petition.
NEVADA EMBROILED IN PETITION DISPUTES
Only one independent presidential candidate submitted a petition in Nevada this year. Rocky De La Fuente submitted over 10,000 signatures to meet a requirement of 5,431. However, the state rejected his petition without even checking it. The law requires an independent presidential candidate to show his or her petition to the state before it circulates. De La Fuente submitted a copy of his petition to the Clark County elections office (Clark County has over half of Nevada?s population and De La Fuente expected to get all his signatures there). Unfortunately for him, he didn?t submit the petition to the Secretary of State.
It doesn?t follow logically that every instance of failing to follow the law means that a petition must be invalidated. The harm done to the state seems miniscule, and the harm done to voters who want to vote for De La Fuente is severe, especially because Nevada doesn?t allow write-ins. De La Fuente has an attorney working on resolving the problem.
In the meantime, the only minor party petition submitted this year in Nevada has not been approved. The Green Party?s petition was rejected for not having enough valid signatures, as noted in the last B.A.N. The party has not filed any lawsuit for more time, but is instead hoping to show that it really does hae enough valid signatures.
GEORGIA BALLOT ACCESS BILL
On July 14, Georgia State Senator Josh McKoon said he will introduce a bill in 2017 to abolish mandatory petitions for independent candidates, and the nominees of unqualified parties. McKoon is a Republican from Columbus, and he has been in the Senate since 2010. Georgia?s ballot would not be crowded if that bill passed, because the state?s filing fee is very high: 3% of the annual salary of the office.
VIRGINIA LAW TELLING DELEGATES HOW TO VOTE IS STRUCK DOWN
On July 11, U.S. District Court Judge Robert Payne, a Bush Sr. appointee, struck down a Virginia law that punishes delegates to presidential conventions who don?t vote for the presidential candidate who won a Virginia presidential primary. Correll v Herring, e.d., 3:16cv-467. Donald Trump won the Republican Virginia primary, and delegate Carroll Correll said he did not want to vote for Trump at the convention.
The state argued that the lawsuit should be dismissed because Correll would not be prosecuted. But that argument was too late. Before Correll filed the lawsuit, he asked the Virginia Election Board if he could be prosecuted. The law establishes one year in jail and a fine of $2,500. The state board referred Correll to his local Commonwealth?s Attorney, who told Correll that yes, he would probably be prosecuted. Once that was said, nothing the state said later could erase that first response.
The decision depends on several U.S. Supreme Court rulings that state election laws cannot tell national political parties how to run their conventions. The ruling said strict scrutiny applies, and that the burden on Correll is severe. The state also argued that Correll filed his lawsuit too late. He was appointed a delegate on April 16 and he didn?t file the lawsuit until June 24. But the judge said Correll?s tardiness did not harm the state.
PRESIDENTIAL DEBATE DATES & CITIES
On July 11, the Commission on Presidential Debates said the debates for president will be: (1) Dayton, September 26; (2) St. Louis, October 9; (3) Las Vegas, October 19.
On July 19, the Dayton host, Wright State University, said it could not handle the debate. The same day, the Commission substituted Hempstead, New York.
Arizona: on July 20, U.S. District Court Judge David Campbell, a Bush Jr. appointee, refused to enjoin the new law that hugely increases the number of write-ins needed for a member of a small party to win his or her primary. Libertarian Party of Arizona v Reagan, 2:16cv-1019. He said he wants to sue how well the various Libertarian write-in candidates do in the August 30 primary.
Illinois: on July 20, a state trial court said the initiative to set up an independent redistricting commission cannot be on the ballot, even though it has enough valid signatures. The State Constitution says no initiatives are permitted except for those that change procedures for the legislature. A few days later, the State Supreme Court said it will accept an appeal of that decision. Hooker v Illinois State Board of Elections, 16 CH-6539.
Iowa: on June 30, the State Supreme Court ruled 4-3 that ex-felons cannot register to vote. The Constitution only refers to "infamous crimes", but the Court said that means all felonies. Griffin v Pate, 15-1661.
Nebraska: on July 14, the Eighth Circuit ruled that Kent Bernbeck does not have standing to challenge the law requiring statewide initiatives to have the signatures of 5% of the voters in at least 38 of the state?s 93 counties. The vote was 2-1. Bernbeck has frequently worked to qualify initiatives in Nebraska, and had won his case in U.S. District Court. He will ask for a rehearing.
New Mexico: on July 15, independent candidate Bob Perls filed a lawsuit in state court, arguing that the 3% petition for independent candidates is so difficult, it violates the State Constitution, which says, "All elections shall be free and open, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." The case is Perls v State, Santa Fe County, D-101-cv-2016-1744.
New York: on July 14, U.S. District Court Judge Sterling Johnson, a Bush Sr. appointee, refused to enjoin the state?s ban on out-of-state petitioners. Merced v Spano, e.d., 1:16cv-3054. He said the law is probably unconstitutional, but he said the case had been filed too late to deserve injunctive relief. The case remains alive, but for now the ban will be enforced. This is a Libertarian Party case.
Texas: on July 20, the entire panel of full-time judges of the Fifth Circuit ruled that the state must let voters who lack government photo-ID vote, if that voter signs under penalty of perjury that he or she was unable to obtain such ID. The vote was 9-6. Four of the majority were appointees of Republican presidents. Veasey v State, 14-41127.
Texas (2): on July 20, U.S. District Court Judge Lee Yeakel struck down an Austin campaign finance law that barred campaign contributions to candidates for Mayor and City Council, except during the six months before the election. Zimmerman v City of Austin, w.d., 1:15cv-628.
Virginia: on July 19, the Fourth Circuit refused to rehear Sarvis v Alcorn, the Libertarian Party case challenging the discriminatory order of candidates on the ballot. It is likely the party will ask the U.S. Supreme Court to hear this case.
Virginia (2): on July 22, the State Supreme Court said the Governor is not permitted to issue a blanket forgiveness to ex-felons who want to register to vote; he must consider each ex-felon separately. The vote was 4-3. Howell v McAuliffe, 160784.
Wisconsin: on July 19, U.S. District Court Judge Lynn Adelman ruled that the state must let voters who lack government photo-ID vote, if they sign under penalty of perjury that they were unable to obtain such ID. Frank v Walker, e.d., 11-cv-1128.
CALIFORNIA GOVERNOR VETOES BILL ON WRITE-IN CANDIDATES
On July 25, California Governor Jerry Brown vetoed SB 49. It would have said that in a special legislative election, if only one candidate filed to be on the ballot, the election is cancelled. Brown said that this policy would prevent anyone from filing as a write-in candidate, because by the time such a candidate filed, it would be too late. The bill had passed unanimously in the State Senate, and only four members of the Assembly had voted "no."
TENNESSEE RESTRICTS VOTE TEST FOR PARTIES
On April 28, Tennessee HB 2079 was signed into law. It makes it more difficult for a group to keep its qualified party status. The old law said a party had two elections to meet the 5% vote test, but the new law says a party must poll 5% at every election, or it goes off the ballot. The bill passed unanimously.
ROCKY DE LA FUENTE GEORGIA PETITION
Independent presidential candidate Rocky De La Fuente submitted 14,000 signatures to qualify in Georgia, and the state is checking his signatures. The requirement is 7,500. However, De La Fuente didn?t meet the July 1 deadline to submit the names of his presidential elector candidates, so he may be kept off the ballot. On the other hand, he may be able to make a case that the elector filing deadline is unconstitutional, especially given the Arizona outcome mentioned on page one.
The April 1, 2016 B.A.N. said that Utah Senate Bill 25 had been signed into law, and that it repealed the straight-ticket device. Actually SB 25 merely moved the authorization for the device from one part of the election code to another part. Utah still has a straight-ticket device.
2016 PRESIDENTIAL VOTE EFFECT ON PARTY QUALIFICATION OR RETENTION
In the states listed above, a party that polls a certain share of the vote for president gains qualified ballot status for the next election, or the next several elections. Most of the listed states have a vote test that applies to all statewide offices, not just President. The only states that use only president for their vote test are Kentucky and Washington.
Maine is not listed above. However, if a party that was not previously qualified receives 5% of the vote for President, it becomes a qualified party. But an already-qualified party does not retain its qualified status by polling any share of the vote for President.
States in which a party?s vote for president has no effect on whether it gains or keeps qualified status are California, Delaware, Florida, Indiana, Mississippi, New Hampshire, New Jersey, New York, South Carolina, South Dakota, Vermont, West Virginia, and Wyoming. Although a party?s qualified status in Vermont is not affected by its share of the vote, whether it becomes entitled to a primary is determined by its vote; a 5% vote for President gives it a primary for the next election.
Except for Maine, if a presidential candidate does not have his or her party?s label on the ballot, then the vote doesn?t count for ongoing qualified status.
2016 PETITIONING FOR PRESIDENT
#partisan label is permitted on the ballot (other than "independent").
UTAH STATE SENATOR SWITCHES FROM REPUBLICAN TO LIBERTARIAN
On July 25, Utah State Senator Mark Madsen said he has changed his registration from "Republican" to "Libertarian." He was first elected to the Senate in 2004, and is not running for re-election. This is the first time any party, other than the Democratic and Republican Parties, has had state legislators in as many as three states simultaneously since 1934-1936, when the Socialist Party had legislators in Connecticut, Pennsylvania, and Wisconsin.
INDEPENDENT ELECTED TO LOUISIANA LEGISLATURE
Joe Marino, a registered independent, was recently declared elected to the Louisiana House of Representatives. The 85th district was vacant because the incumbent Republican had resigned. Marino was the only candidate who filed for the special election, so he was deemed to be elected. Louisiana does not permit write-ins, and when only one person files, the election is cancelled. There are now three independents in the Louisiana legislature.
ONE-STATE PARTIES AND PRESIDENTIAL ELECTION
One can now make a guess as to which presidential candidates some various one-state parties will nominate.
California: leaders of the American Independent Party are leaning toward nominating Donald Trump. California permits two parties to jointly nominate the same presidential candidate. The AIP must first determine if the California Republican Party will permit a fusion slate of presidential electors. The Peace & Freedom Party is likely to nominate Gloria La Riva, who is also the presidential nominee of the Party for Socialism and Liberation. Both California parties choose their presidential nominees on August 13 in Sacramento.
Delaware Independent Party: endorsed Donald Trump on May 30, but can?t nominate him because Delaware abolished fusion a few years ago.
United Independent Party of Massachusetts probably won?t nominate anyone.
New York Independence Party is likely to nominate Donald Trump.
Oregon Independent Party won?t nominate anyone. Bernie Sanders won the party?s private presidential primary, but he got less than 50%, and in any event he wouldn?t accept the nomination.
CALIFORNIA HAS RARE 3-CANDIDATE LEGISLATIVE RACE
Since 2011, California has used the top-two system for congressional elections, and for partisan state office. However, in November, there will be three candidates on the ballot for Assembly, 62nd district. They will be one Democrat, one Republican, and one Libertarian. The June 7 primary ballot only had one candidate, Democrat Autumn Burke. Two write-in candidates filed, and they each got 32 write-ins. The top-two law says when there is a tie for second place in the primary, but tied candidates (along with the first-place finisher) are on the November ballot.
WEST VIRGINIA GREEN PARTY NOMINEE IS A FORMER DEMOCRATIC NOMINEE
The Green Party of West Virginia (called the Mountain Party) has nominated Charlotte Pritt for Governor. In 1996 she was the Democratic nominee for that office.
HAWAII LIBERTARIAN STATE SENATE NOMINEES OUTNUMBER GOP
Hawaii has fourteen State Senate seats up. Libertarians are running in six districts; Republicans in five districts.
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Only Four Presidential Candidates Will be on Ballot in States Holding a Majority of the Electoral College (August 27, 2016, 06:43 PM)
In the 2016 election, only Hillary Clinton, Gary Johnson, Jill Stein, and Donald Trump, will be on ballot in states containing a majority of the electoral college. This is the same number as in 2012.
Rocky De La Fuente is likely to be on the ballot in between 23 and 28 states. But even if he gets all 28, they only have 250 electoral college votes, and a majority is 270.
Darrell Castile is likely to be on the ballot in 25 states, which have 211 electoral college votes. If he can re-validate 39 more signatures in Tennessee, then he would have 26 states with 222 electoral votes.
Jill Stein Tells Amy Goodman That She Will be at the First Presidential Debate (August 27, 2016, 04:25 PM)
Jill Stein was recently interviewed by Amy Goodman. See the video here. The middle part has video from 2012, when Stein and her vice-presidential running mate were handcuffed for eight hours because they came to the first 2012 general election presidential debate. After that part of the show, Stein tells Goodman that she will attend the first 2016 debate, set for September 26 in Hempstead, New York, at Hostra University.
On August 26, the California Secretary of State released a Memorandum to county election officials on ballot format for the upcoming general election. The Republican Party and the American Independent Party have both nominated Donald Trump for President. As expected, the Secretary of State’s Memorandum says the ballot should say “Donald Trump, Republican, American Independent.” This is in accordance with the election code and with the ballot used in November 1940, which included “Wendell Willkie, Republican, Townsend.”
The surprise in the Memorandum is the conclusion that it doesn’t matter if the Republican Party and the American Independent Party have not agreed to a common slate of candidates for presidential elector. The Memorandum says, “How will Presidential and Vice Presidential Electors be Selected when more than one political party nominates the same candidate?” The answer is, “The Elections Code does not address the manner in which electors for President and Vice President of the United States are selected in situations where more than one party nominates the same candidate. We will address this issue if/when appropriate.”
Several weeks ago, the American Independent Party suggested to the Republican Party that the two parties jointly nominate the same slate of presidential electors. The AIP proposed that the Republican Party choose 50 elector candidates, and the AIP choose 5 elector candidates, and then both parties would jointly nominate that fusion slate. But the Republican Party has balked at this idea. This means that the Secretary of State feels comfortable going ahead with the election, without having learned who the presidential electors of these two parties are. The Secretary of State probably made this ruling, confident that it doesn’t matter who the presidential electors are for those two parties are, because the Democrats will carry California anyway. This seems a very reckless course of action. If the two parties do file slates of presidential electors that don’t match, and if Trump carried California, there would be no method to know which presidential elector candidates had been elected. Furthermore, Democrats could claim that their slate of electors theoretically won the election because the Trump vote included two competing slates of electors and no one could know which of the three slates got the most votes.
The memorandum also gives the county election officials authority to abbreviate party names, although apparently this is just a repeat of a similar ruling made in 2012. The abbreviations would be: DEM, REP, AI, GRN, LIB, PF, and “REP, AI.” Thanks to Mark Seidenberg for the link.
Two Influential Republicans Call for Later Presidential Primaries (August 27, 2016, 01:45 PM)
The Washington Post has this op-ed by Tom C. Korologos and Richard V. Allen. They believe that the Republican Party, which they support, chose the wrong presidential nominee this year. They say that the party should change the process for future presidential elections. They want the Republican Party to create superdelegates; they want to make it more difficult for candidates to seek the Republican nomination; and they want later presidential primaries and caucuses. Thanks to Richard Pildes for the link.
Jill Stein Will Submit Triple the Requirement in Wyoming (August 27, 2016, 11:45 AM)
The Wyoming petition deadline for independent candidates is Monday, August 29. This news story says Jill Stein will turn in over 10,000 signatures, even though only 3,302 are required. This is a wise move on her part. Wyoming petition validity is usually quite low.
On June 23, 2016, supporters of Bernie Sanders sued the Democratic National Committee over a belief that the national party had not been neutral in the race for the Democratic presidential nomination. On August 23, a hearing was held in the case, Wilding v DNC Services, southern district of Florida, 0:16cv-61511. But the only issue was whether the plaintiffs had properly served the defendants.
During the two-hour hearing, Judge William Zloch permitted the plaintiffs to show a video film clip of the server serving someone in the party office. The party argues that the person who received the papers was not authorized to accept the papers. The day after the hearing, both sides submitted briefs on the service issue. Supporters of the lawsuit have a facebook page which has more detail.
Illinois State Board of Elections Removes the Only Libertarian for U.S. House who filed This Year (August 26, 2016, 10:26 PM)
Although the Libertarian Party’s three statewide candidates are safely on the Illinois ballot this year, the only Libertarian who petitioned for U.S. House was removed from the ballot on August 26. He is Joseph Schreiner, running in the 16th district in north central Illinois. As a result, there is only one candidate on the ballot, incumbent Republican Adam Kinzinger.
Schreiner submitted a very small number of signatures, so the recent decision in David Gill’s case is of no help to him. But Schreiner would have remained on the ballot, except that two individuals named Chris Brown and Barry Welbers challenged his petition.
On August 26, the South Dakota Constitution Party filed this reply brief, in its lawsuit over whether its nominees for U.S. Senate and state house should be on the ballot. Unless relief is granted, South Dakota won’t have any minor party candidates on the ballot in November for any office except president.
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